Wollongong City Council v Kudrynski & Anor [2013] NSWLEC 4

Wollongong City Council v Kudrynski & Anor [2013] NSWLEC 4

Council was entitled to enforcement orders because all remaining challenged structures and fence works required formal approval, the respondents failed to establish any relevant approvals or exempt status, Council established the absence of legal approvals, and the evidence showed the accumulation of materials left the property in an unsightly and potentially unsafe or unhealthy condition justifying enforcement of Council Order No 21. No discretionary basis was shown for refusing relief.

Jurisdiction
Australia
Judgment Date
29 January 2013
Procedural Posture
Class 4 Civil Enforcement Proceedings / Principal Judgment After Two Day Hearing; Costs Reserved
Outcome
Orders made substantially as sought by Council for demolition, removal, reinstatement and compliance with Council Order No 21; costs reserved for written submissions.
Legal Topics
['unauthorised Structures' 'development Consent and Building Approval' 'council Orders Under the Environmental Planning and Assessment Act 1979 and Local Government Act 1993' 'rubbish and Refuse Removal' 'exercise of Discretion' 'costs']
['environmental Planning and Assessment' 'local Government' 'land and Environment Court Civil Enforcement'] ['unauthorised Structures' 'development Consent and Building Approval' 'council Orders Under the Environmental Planning and Assessment Act 1979 and Local Government Act 1993' 'rubbish and Refuse Removal' 'exercise of Discretion' 'costs']

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Procedural Posture

Class 4 Civil Enforcement Proceedings / Principal Judgment After Two Day Hearing; Costs Reserved

Legal Issues

  1. 1 ['Whether the remaining challenged structures and fence works required formal approval and lacked development consent or building approval.' "Whether Council's knowledge, inspection or measurement of structures, or references in correspondence, amounted to tacit or implied approval." "Whether the respondents' accumulation of materials justified enforcement of Council Order No 21 under the Local Government Act 1993." 'Whether the Court should exercise discretion to refuse or limit relief.' 'Whether the question of costs should be determined immediately or reserved for written submissions.']

Ratio Decidendi

Council was entitled to enforcement orders because all remaining challenged structures and fence works required formal approval, the respondents failed to establish any relevant approvals or exempt status, Council established the absence of legal approvals, and the evidence showed the accumulation of materials left the property in an unsightly and potentially unsafe or unhealthy condition justifying enforcement of Council Order No 21. No discretionary basis was shown for refusing relief.

Court Disposition

Orders made substantially as sought by Council for demolition, removal, reinstatement and compliance with Council Order No 21; costs reserved for written submissions.

Orders

  • ['The Respondents are to demolish and remove, or cause to be demolished and removed, the Unauthorised Work from the Subject Property within 180 days.' 'The Respondents are to reinstate the original roof form following the removal of the first floor loft located on the western side of the existing dwelling on the...